Lamb v. Hopkins

COLE, Judge. We granted certiorari in this case to determine whether a probation officer who fails to report a probationer’s violation to the sentencing court owes any duty to an individual injured by the negligence of the probationer. Because this case reaches us on demurrer, 1 we are required to accept as true all well-pleaded material facts in the declaration and any reasonable inferences that may be drawn therefrom. Tadjer v. Montgomery County, 300 Md. ²³⁹ 539, 542, 479 A.2d 1321, 1322 (1984); Cox v. Prince George’s County, 296 Md. 162, 169 , 460 A.2d 1038, 1042 (1983).

On August 8, 1975, Russell J. Newcomer, Jr., was convicted in the Circuit Court for Frederick County of armed robbery and received a five year sentence, four and one-half years of which the court suspended. After Newcomer served six months of this sentence, the court placed him on supervised probation for the remainder of his term (until August 7, 1980). The probation order required Newcomer to obey all laws, not to possess any firearms, and to participate in an alcohol treatment program. On April 14, 1978, the Circuit Court for Frederick County held a hearing to determine whether to revoke Newcomer’s probation on the grounds that he had been convicted in June 1976 for driving while intoxicated and in September 1977 for driving while impaired.

He also had been arrested in October 1977 for driving while intoxicated and had failed to participate in the alcohol treatment program prior to December 1977. The circuit court continued the probation, but specifically cautioned Newcomer that if he became “involved in another alcohol offense,” he likely would serve time. One month after the probation revocation hearing, Newcomer pleaded guilty in the District Court sitting in Frederick County to driving while intoxicated and to driving while his license was suspended. Newcomer received a two year suspended sentence and was placed on supervised probation for one year.

In response, the State’s Division of Parole and Probation (Division) opened Newcomer’s file on a “nonactive” supervision basis. Furthermore, the field agents (i.e., probation officers) assigned to supervise Newcomer 2 failed to report these two District Court convictions to the Circuit Court for Frederick County. ²⁴⁰ Thereafter, in September 1979, Newcomer was convicted by the District Court sitting in Frederick County of discharging a firearm and of driving while his license was suspended. These probation violations were similarly not reported to the Circuit Court for Frederick County, nor were they reported to the sentencing judge of the District Court who placed Newcomer on a suspended sentence with supervised probation for one year. On November 10, 1979, Newcomer, again driving while under the influence of alcohol, collided with a vehicle operated by Cynthia Lou Lamb.

This collision rendered the Lambs’ then five-month-old daughter, Laura, a quadriplegic. In January 1982, Alan C. Lamb and Cynthia Lou Lamb, as parents and natural guardians of Laura, filed suit against Newcomer in the Circuit Court for Frederick County. In an amended declaration filed in late 1982 plaintiffs also sued the director and various employees of the Division, alleging that at the time of the collision Newcomer was on supervised probation under a suspended sentence, and that these defendants proximately caused the minor plaintiff’s injuries by failing to petition the sentencing court to incarcerate Newcomer for numerous probation violations. The Division defendants filed a demurrer, alleging that as public officials they were immune from liability, and further that under the amended declaration they neither owed a duty to plaintiffs nor proximately caused the collision.

Initially, the trial court overruled the defendants’ demurrer because the facts were insufficient to determine whether the defendants were immune to suit. 3 Defendants then filed a motion for reconsideration urging the trial court to consider the other grounds for the demurrer. After additional oral argument, the trial court sustained the demurrer without leave to amend by order dated May 10, 1983, on the ²⁴¹ ground that the defendants owed no duty to the plaintiffs. Because this order constituted a final judgment under former Md.Rule 345 e, the Lambs filed an appeal with the Court of Special Appeals, but we granted certiorari prior to decision by that Court. We affirm.

I Three basic elements are necessary to state a cause of action in negligence. First, the defendant must be under a duty to protect the plaintiff from injury. Second, the defendant must fail to discharge that duty. Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure.

See, e.g., Scott v. Watson, 278 Md. 160, 165 , 359 A.2d 548, 552 (1976); Peroti v. Williams, 258 Md. 663, 669 , 267 A.2d 114, 118 (1970). The focus in this case shall be on the first element, duty, which in general terms requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. See Prosser and Keeton on the Law of Torts § 30, at 164 (W. Keeton 5th ed. 1984) [hereinafter cited as Prosser and Keeton ]. Appellants basically contend that an individual who controls a person known by him to be dangerous owes a duty to exercise due care to those who may be foreseeably harmed by the failure to exercise this level of care, regardless of whether the foreseeably harmed person is readily identifiable.

More specifically, the Lambs argue that the probation officers owed them a duty to exercise due care in controlling Newcomer, known by the probation officers to be dangerous. As a result, the Lambs maintain that the trial court erred in sustaining the demurrer to their amended declaration. The appellees, however, counter that they owed no duty of care to the Lambs because the appellees had neither the right nor the ability to control Newcomer’s conduct. Absent a special relationship not present here, appellees contend that no basis exists for imposing liability on them for Newcomer’s tortious acts. ²⁴² In support of their respective positions each party relies upon §§ 315 and 319 of the Restatement (Second) of Torts (1965) [hereinafter cited as Restatement].

Because we have never examined these provisions in detail in the past, cf. Scott v. Watson, supra (citing § 315), we find it necessary to do so now. A. Section 315 is a special application of the general rule set forth in § 314. Section 314 states that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” In turn, § 315 articulates the general rule that [t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. This section makes clear that, absent a special relation between the actor and the third person, the actor has no duty to control the conduct of a third person and therefore no liability attaches for the failure to control that person. 4 ²⁴³ The relations between the actor and the third person that give rise to such a duty are set forth in Restatement §§ 316-19. 5 Section 316 provides that a parent has a duty to control the conduct of his minor child; § 317 establishes a master’s duty to control the conduct of his servant; § 318 sets forth the duty of a possessor of land or chattels to control the conduct of a licensee; and § 319 deals with the duty of those in charge of persons having dangerous propensities.

The latter section is the sole provision that has any conceivable application to this case. Section 319, entitled “Duty of Those in Charge of Person Having Dangerous Propensities,” provides in its entirety: “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” The operative words of this section, such as “takes charge” and “control,” are obviously vague, and the Restatement makes no formal attempt to define them. The comment to § 319, however, indicates that the rule stated in that section applies to two situations. First, §319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal.

Second, § 319 applies to those situations where the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know. Illustrations appended to § 319, which concern the negligent release of an infectious patient from a private hospital ²⁴⁴ for contagious diseases and the escape of a homicidal maniac patient through the negligence of guards employed by a private sanitarium for the insane, provide further guidance regarding the scope of § 319. Because there are degrees of being “in charge” and having “control,” these illustrations are obviously not by way of limitation. See McIntosh v. Milano, 168 N.J.Super. 466 , 483 n. 11, 403 A.2d 500 , 508-09 n. 11 (1979).

These illustrations suggest, however, that § 319 has peculiar application to custodial situations. See Prosser and Keeton, supra, § 56 & n. 16, at 383 (indicating that the relationships discussed in § 319 “are custodial by nature”). B. The parties are evidently in agreement that §§ 315 and 319 are reflective of modern tort principles, and that the issue presented in this case is one of first impression in this State. Although Maryland appellate courts have made passing reference to § 315 on at least three occasions, see Scott v. Watson, supra; Henley v. Prince George’s County, 60 Md.App. 24 , 479 A.2d 1375 (1984), cert. granted, 302 Md. 131 , 486 A.2d 173 (1985); Furr v. Spring Grove State Hospital, 53 Md.App. 474 , 454 A.2d 414 , cert. denied, 296 Md. 60 (1983), 6 none has ever specifically cited § 319.

Moreover, we have never expressly adopted either §§ 315 or 319. Our decision in Scott mentioned § 315 in the context of three questions of law that had been certified from the United States District Court for the District of Maryland under the Maryland Uniform Certification of Questions of Law Act. One of these questions was whether Maryland law imposed upon the landlord of an urban apartment ²⁴⁵ complex a duty to tenants to protect them from the criminal acts of third parties committed in common areas within the landlord’s control and, if so, the extent of that duty. In analyzing this question we recounted the basic elements necessary to state a cause of action in negligence.

Applied to the landlord/tenant context we held that there is no special duty imposed upon the landlord to protect his tenants against crimes perpetrated by third parties on the landlord’s premises. In a passage central to our discussion here, the Scott Court cited § 315 for the proposition that this general rule is merely “a subsidiary of the broader rule that a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.” Id., 278 Md. at 166 , 359 A.2d at 552 . By virtue of our citation to § 315, we implicitly approved the analytical framework embodied within that section and, inferentially, § 319. In our view, Scott suggests that § 315, which reflects the common law of this State, outlines the appropriate analytical framework for determining whether an actor has a duty to control a third person. 7 Section 319, which merely amplifies § 315, is likewise reflective of the common law.

Accordingly, we expressly adopt § 319 as the law of this State governing the duty of those in charge of persons having dangerous propensities. ²⁴⁶ C. The Lambs seek to hold the probation officers liable for not reporting the probationer’s misconduct to the appropriate courts. They argue that had these officers reported this misconduct to the courts the probationer would not have been in a position to commit the tortious acts because he would have been incarcerated. Initially, we note that the probation officers did not meet the threshold requirement of taking charge of the probationer within the meaning of § 319. The comments and illustrations accompanying § 319 suggest that an actor typically takes charge of a third person by placing him in some form of custody.

The more traditional and obvious examples include a correctional institution incarcerating a dangerous criminal, see Cansler v. State, 234 Kan. 554 , 675 P.2d 57 (1984), or a mental institution confining a dangerous patient, see, e.g., Bradley Center, Inc. v. Wessner, 161 Ga.App. 576 , 287 S.E.2d 716 , aff'd, 250 Ga. 199 , 296 S.E.2d 693 (1982); Maroon v. State, Dep’t of Mental Health, 411 N.E.2d 404 (Ind.Ct.App.1980); Petersen v. State, 100 Wash.2d 421 , 671 P.2d 230 (1983). The probationer in this case, of course, was not incarcerated in a correctional institution or confined in a mental hospital, nor had he been negligently released from these facilities, at the time of the 1979 automobile accident. In our judgment, this case is more closely analogous to those decisions where courts have found that the actor did not take charge of a person having dangerous propensities within the meaning of § 319. See, e.g., Bergmann v. United States, 689 F.2d 789, 796 (8th Cir.1982); Seibel v. City and County of Honolulu, 61 Haw. 253, 259-61 , 602 P.2d 532, 537-38 (1979); Baugher v. A. Hattersley & Sons, Inc., 436 N.E.2d 126 , 128 n. 1 (Ind.Ct.App.1982); Sports, Inc. v. Gilbert, 431 N.E.2d 534, 536-38 (Ind.Ct.App.1982); Gooden v. Tips, 651 S.W.2d 364, 370 (Tex.Ct.App.1983); Bailey v. Town of Forks, 38 Wash.App. 656 , 688 P.2d 526, 530-31 (1984).

See generally Pursley ex rel. Clark v. Ford Motor Co., 462 N.E.2d 247 , 250 n. 6 (Ind.Ct.App.1984) ²⁴⁷ (declining to decide whether § 319 would impose a duty on Ford because, inter alia, there was no evidence that Ford “took charge” of third person). A brief review of several of these cases will clarify the take charge criterion under § 319. For example, Bailey involved a police officer who ordered an obviously intoxicated person (Medley) to leave a tavern and personally observed Medley get into the driver’s seat of a truck.

Shortly after the officer’s contact with Medley, the truck collided with a motorcycle, fatally injuring the driver of the motorcycle and seriously injuring the cycle’s passenger (Bailey). Bailey sued the town for negligence in failing to prevent Medley from driving his truck. Relying upon § 319, Bailey argued that the officer took charge of Medley and that the officer breached his duty to Bailey because he failed to control or prevent Medley’s drunken operation of a vehicle. In rejecting Bailey’s argument in a unanimous opinion, the court reasoned that the complaint failed to allege facts to support the conclusion that the officer took charge or control of Medley.

Instead, the